Since the start of the COVID-19 pandemic, there has been a surge in demand for Will writing, both in preparing new Wills and updating existing Wills.
In this article Jack Ackrill, Solicitor in the Contentious Probate Team at Wilkes discusses the importance of choosing the right executor in order to avoid loved ones having to deal with a dispute after we die.
It is important to be aware of and understand who can be appointed as an executor and just what that role entails so that we can make an informed decision.
The fact of the matter is, virtually anyone can be an executor; a family member, a friend or perhaps an independent professional such as an independent financial advisor, accountant or a solicitor. The most important matter to consider when making this decision is whether the appointed individual is trusted and, quite frankly, capable of dealing with your affairs competently and in accordance with your wishes.
Executors have a duty to properly administer the deceased person’s estate. This requires collecting in the estate assets and paying off the estate liabilities before distributing to the named beneficiaries in the Will. Of course, this should be done (regardless of whether or not they are a professional executor) with reasonable skill and care. Executors owe a duty to the beneficiaries of the Will to ensure that the estate is properly administered.
Disputes usually arise where relationships break down between fellow executors and/or beneficiaries. What follows is a lack of trust and allegations being made as to potential maladministration and perhaps favouritism towards other beneficiaries or third parties. The estate and its beneficiaries tend to lose out considerably in these types of disputes, especially if the matter proceeds to a fully contested trial in the High Court where legal costs can spiral out of control.
It is therefore very important that, when deciding who your executors are going to be, that you consider the nature of the role, their obligations and the scope for a potential dispute in the event of disagreement and the implications this would have on the estate.
Conversely, if you find yourself in a situation where you disagree with what an executor is doing and you are a beneficiary or fellow executor, you may find yourself with little option but to take independent legal advice to try to resolve the matter.
When administering an estate, disputes may arise where the executors:
- are not performing their duties correctly;
- are incapable of performing their duties,
- are disqualified due to a criminal conviction;
- have a conflict of interest; and
- have acted in a way which amounts to serious misconduct in administrating the estate.
If an executor is considered by a beneficiary or a fellow executor to have failed in their duties to administer an estate, there may be option for recourse via the High Court. As above, this is a costly and time-consuming process, but may be unavoidable depending on the circumstances.
Indeed, I would strongly suggest that anyone finding themselves in such a predicament should try to obtain independent legal advice to assess their options before taking any further action.
The Contentious Probate Team at The Wilkes Partnership advises executors and beneficiaries faced with issues in relation to the conduct of an estate administration and/or removal of executors if appropriate. If you wish to discuss any aspect of the obligations of an executor or issues regarding an estate, please get in touch with Jack Ackrill on 0121 233 4333 or via email on [email protected].